Preview
FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015
NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
TANYA MALLORY , Index No. 452540/15
Plaintiff, AFFIRMATION
IN OPPO.SITION
-against-
Assigned to:
THE CITY OF NEW YORK, Hon. Ramseur
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC., AND VERIZON NEW Motion Return Date:
ROBINSON S. KASSIEM AND March 30, 2020
YORK, INC.,
JACOB A. RIVERS,
Defendants.
___ ____
SHAWN P. O'SHAUGHNESSY, an attorney duly admitted to
practice law before the Courts of the State of New York, affirms the
following to
be true under the penalties of perjury:
1. I am an associate
attorney
in the law offices of DESENA &
SWEENEY, LLP, attorneys of record for defendants ROBINSON S. KASSIEM and
JACOB A. RIVERS. As such, I am familiar with the facts and circumstances of this
action. The source of my knowledge and information are the records maintained
your affirmant's office in the course of the defense of this action.
by
2. I subrnit this affirmation in opposition to the
respectfully
plaintiff's motion for judgment.
liability summary
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THE SUMMARY JUDGMENT STANDARD
3. CPLR § 3212 (b) requires that for a court to grant
summary
judgment the court must determine if the movant's papers justify holding as a
merit."
matter of law, "that the cause of action or defense has no
4. The evidence submitted in support of the movant must be
viewed in the light most favorable to the non-movant. Airco Alloys Division, Airco
Inc. v Niagara Mohawk Power Corp., 76 A.D.2d 68, 430 N.Y.S.2d 179 (4th Dept.
1980).
5. The court's function, when presented with a
summary
judgment motion, is not to determine
credibility or engage in issue determination,
but rather to determine whether there are material issues of fact for the Court to
determine. Quinn v Krumland, 179 A.D.2d 448, 577 N.Y.S.2d 868 (1st Dept. 1992).
6. Summary judgment shall be granted
only
when there are no
issues of material fact and the evidence requires the court to direct judgment in
favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur
Mfrs., 46 N.Y .2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979).
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NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020
THE EVIDENCE REVEALS THAT THE PLAINTIFF IS NOT ENTITLED
TO SUMMARY JUDGMENT AS TO ALL DEFENDANTS
7. At the outset, the police report supplied
by movant is not certified
and same contains hearsay. As such, same is insufficient as
"evidence"
to assist the plaintiff. See Peerless Ins. Co. v Milloul, 140
A.D.2d 346, 527 N.Y.S.2d 838 (N.Y. App. Div. 2d Dep't 1988); CPLR
4518[c].
"evidence"
8. The sole piece of utilized
by the plaintiff is an
extremely
terse Affidavit of the plaintiff herself. Of note, the plaintiff had
appeared for an examination before trial but her counsel
curiously
elected not to submit same on this application.
9. In the interests of full disclosure, we hereby supply
the plaintiff's
sworn deposition
testimony
from November 9, 2018. See Exhibit
"A".
10. At her deposition, Ms. MALLORY confirmed that defendant
ROBINSON KASSIEM (represented
by this office) was the operator
of a motor vehicle on the date at issue and that she was his passenger.
(Exhibit "A", p.16) MALLORY described ROBINSON S. KASSIEM's
"fine"
operation of the motor vehicle as and that the vehicle she was
riding
in was not traveling fast at all. (Exhibit "A", p.17, 20, 149)
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NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020
Finally, plaintiff MALLORY expressly testified that there was
nothing about ROBINSON S. KASSIEM's driving
that would have
led to the incident at issue. (Exhibit "A", p.149) (Emphasis
Supplied)
11. Based upon the foregoing, it is abundantly clear that the plaintiff has
not established entitlement to
summary judgment against
defendant/operator ROBINSON S. KASSIEM.
12. A jury
should ultimately determine the relative culpable conduct of
each party, if any, and same should not be determined as a matter of
law at this juncture.
13. To that end, your affirmant cites to the April 2018 Court of Appeals
decision in Rodriguez v
City of
New York, 31 NY3d 312. Rodriguez
permits the defense to argue plaintiff's potential
undoubtedly
comparative negligence to the
jury
and empowers the
jury
to make a
determination as to whether the plaintiff has comparative
any
negligence and the percentage of same ifany.
14. Within the Rodriguez decision the Court of Appeals states:
expressly
"When a defendant's
liability
is established as a matter of law
before trial, the jury must still determine whether the
plaintiff was negligent and whether such negligence was a
substantial factor in causing plaintiff's injuries. If so, the
comparative fault of each is then apportioned the
party by
jury. Therefore, the is still tasked with considering the
jury
together."
plaintiff's and defendant's
culpability (Emphasis
Supplied)
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NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020
15. It remains the defense position that the eventual liability trial would
include a jury's ultimate determination as to whether plaintiff
MALLORY was negligent in
any manner and whether that
negligence, if any, was a substantial factor in causing plaintiff's
injuries in this case.
16. Finally, plaintiff/movant suffers no true prejudice should this
application be denied as she can be permitted to renew this
application before a of her peers
jury
WHEREFORE, it is requested that this Court the application for
respectfully deny
judgment the plaintiff.
summary by
Dated: Bohemia, New York
March 29, 2020
Shawn P. O'Shaughnessy, Esq.
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NYSCEFDocuSignEnvelope
DOC. 6552EED49C-2AE5-4528-8426-F5D809592F71
NO. ID: RECEIVED NYSCEF: 05/04/2020
Index No. 452540/15 Year 2015
SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF NEW YORK
TANYA MALLORY,
Plaintiff,
-against-
THE CITY OF NEW YORK, CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC.,AND VERIZON NEW
YORK, INC. and ROBINSON S. KASSIEM AND JACOB A.
RIVERS,
Defendants.
NOTICE OF MOTION
DESENA & SWEENEY, LLP
Attorneys at Law
Attorneys for ROBINSON S. KASSIEM AND JACOB A. RIVERS
1500 Lakeland Avenue
Bohemia, NY 11716
(631) 360-7333
ATTORNEY CERTIFICATION
The undersigned, an attomey admitted to practice in the courts of New York State,certifies that,upon
information, belief and reasonable inquiry, the contentions contained in the above referenced document(s)
are not frivolous.
Dated: New York D=S5"d *
Bohemia,
March 2020 $-
29, S(uta/W f. S
55â€
f .
AOSC105D42064BA...
SHAWN P. O'SHAUGHNESSY, ESQ.
Sir:Please take notice
O NOTICE OF ENTRY
that the within is a (certified)
true copy of a duly entered in the officeof the clerk of
the within named Court on , 20 .
O NOTICE OF SETTLEMENT
that an order of which the within isa true copy will be presented for settlement to the Honorable
, one of the judges of the within named court at on , 20 at M.
To: Yours etc.,
Paris & Chaikin, PLLC
Attorney for Plaintiff DESENA & SWEENEY, LLP
14 Penn Plaza, Suite 2202 Attorneysfor
New NY 10122 ROBINSON S. KASSIEM AND JACOB A. RIVERS
York,
742-0476 1500 Lakeland Avenue
(212)
Bohemia, NY 11716
(631) 360-7333
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NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020
Service List:
Arron Washington-Childs, Esq.
Zachary Carter, Esq.
Law Department, CITY OF NEW YORK
100 Church St.
New York, NY 10007
Law Office of Douglas J. McKay
Attorneys for Defendant CON EDISON COMPANY
OF New York,
Law Department
4 Irving Place
New York, NY 10003
Harold Rosengarten, Esq.
Obermayer Rebmann et al
Attorneys for DEFENDANT VERIZON
34"'
521 Fifth Avenue, Floor
New York, NY 10175
..
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Preview
FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TANYA MALLORY , Index No. 452540/15 Plaintiff, AFFIRMATION IN OPPO.SITION -against- Assigned to: THE CITY OF NEW YORK, Hon. Ramseur CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., AND VERIZON NEW Motion Return Date: ROBINSON S. KASSIEM AND March 30, 2020 YORK, INC., JACOB A. RIVERS, Defendants. ___ ____ SHAWN P. O'SHAUGHNESSY, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an associate attorney in the law offices of DESENA & SWEENEY, LLP, attorneys of record for defendants ROBINSON S. KASSIEM and JACOB A. RIVERS. As such, I am familiar with the facts and circumstances of this action. The source of my knowledge and information are the records maintained your affirmant's office in the course of the defense of this action. by 2. I subrnit this affirmation in opposition to the respectfully plaintiff's motion for judgment. liability summary 1 1 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020 THE SUMMARY JUDGMENT STANDARD 3. CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a merit." matter of law, "that the cause of action or defense has no 4. The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Airco Alloys Division, Airco Inc. v Niagara Mohawk Power Corp., 76 A.D.2d 68, 430 N.Y.S.2d 179 (4th Dept. 1980). 5. The court's function, when presented with a summary judgment motion, is not to determine credibility or engage in issue determination, but rather to determine whether there are material issues of fact for the Court to determine. Quinn v Krumland, 179 A.D.2d 448, 577 N.Y.S.2d 868 (1st Dept. 1992). 6. Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 N.Y .2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979). 2 2 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020 THE EVIDENCE REVEALS THAT THE PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT AS TO ALL DEFENDANTS 7. At the outset, the police report supplied by movant is not certified and same contains hearsay. As such, same is insufficient as "evidence" to assist the plaintiff. See Peerless Ins. Co. v Milloul, 140 A.D.2d 346, 527 N.Y.S.2d 838 (N.Y. App. Div. 2d Dep't 1988); CPLR 4518[c]. "evidence" 8. The sole piece of utilized by the plaintiff is an extremely terse Affidavit of the plaintiff herself. Of note, the plaintiff had appeared for an examination before trial but her counsel curiously elected not to submit same on this application. 9. In the interests of full disclosure, we hereby supply the plaintiff's sworn deposition testimony from November 9, 2018. See Exhibit "A". 10. At her deposition, Ms. MALLORY confirmed that defendant ROBINSON KASSIEM (represented by this office) was the operator of a motor vehicle on the date at issue and that she was his passenger. (Exhibit "A", p.16) MALLORY described ROBINSON S. KASSIEM's "fine" operation of the motor vehicle as and that the vehicle she was riding in was not traveling fast at all. (Exhibit "A", p.17, 20, 149) 3 3 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020 Finally, plaintiff MALLORY expressly testified that there was nothing about ROBINSON S. KASSIEM's driving that would have led to the incident at issue. (Exhibit "A", p.149) (Emphasis Supplied) 11. Based upon the foregoing, it is abundantly clear that the plaintiff has not established entitlement to summary judgment against defendant/operator ROBINSON S. KASSIEM. 12. A jury should ultimately determine the relative culpable conduct of each party, if any, and same should not be determined as a matter of law at this juncture. 13. To that end, your affirmant cites to the April 2018 Court of Appeals decision in Rodriguez v City of New York, 31 NY3d 312. Rodriguez permits the defense to argue plaintiff's potential undoubtedly comparative negligence to the jury and empowers the jury to make a determination as to whether the plaintiff has comparative any negligence and the percentage of same ifany. 14. Within the Rodriguez decision the Court of Appeals states: expressly "When a defendant's liability is established as a matter of law before trial, the jury must still determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiff's injuries. If so, the comparative fault of each is then apportioned the party by jury. Therefore, the is still tasked with considering the jury together." plaintiff's and defendant's culpability (Emphasis Supplied) 4 4 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020 15. It remains the defense position that the eventual liability trial would include a jury's ultimate determination as to whether plaintiff MALLORY was negligent in any manner and whether that negligence, if any, was a substantial factor in causing plaintiff's injuries in this case. 16. Finally, plaintiff/movant suffers no true prejudice should this application be denied as she can be permitted to renew this application before a of her peers jury WHEREFORE, it is requested that this Court the application for respectfully deny judgment the plaintiff. summary by Dated: Bohemia, New York March 29, 2020 Shawn P. O'Shaughnessy, Esq. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEFDocuSignEnvelope DOC. 6552EED49C-2AE5-4528-8426-F5D809592F71 NO. ID: RECEIVED NYSCEF: 05/04/2020 Index No. 452540/15 Year 2015 SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF NEW YORK TANYA MALLORY, Plaintiff, -against- THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,AND VERIZON NEW YORK, INC. and ROBINSON S. KASSIEM AND JACOB A. RIVERS, Defendants. NOTICE OF MOTION DESENA & SWEENEY, LLP Attorneys at Law Attorneys for ROBINSON S. KASSIEM AND JACOB A. RIVERS 1500 Lakeland Avenue Bohemia, NY 11716 (631) 360-7333 ATTORNEY CERTIFICATION The undersigned, an attomey admitted to practice in the courts of New York State,certifies that,upon information, belief and reasonable inquiry, the contentions contained in the above referenced document(s) are not frivolous. Dated: New York D=S5"d * Bohemia, March 2020 $- 29, S(uta/W f. S 55†f . AOSC105D42064BA... SHAWN P. O'SHAUGHNESSY, ESQ. Sir:Please take notice O NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the officeof the clerk of the within named Court on , 20 . O NOTICE OF SETTLEMENT that an order of which the within isa true copy will be presented for settlement to the Honorable , one of the judges of the within named court at on , 20 at M. To: Yours etc., Paris & Chaikin, PLLC Attorney for Plaintiff DESENA & SWEENEY, LLP 14 Penn Plaza, Suite 2202 Attorneysfor New NY 10122 ROBINSON S. KASSIEM AND JACOB A. RIVERS York, 742-0476 1500 Lakeland Avenue (212) Bohemia, NY 11716 (631) 360-7333 6 of 7 FILED: NEW YORK COUNTY CLERK 05/04/2020 11:53 AM INDEX NO. 452540/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/04/2020 Service List: Arron Washington-Childs, Esq. Zachary Carter, Esq. Law Department, CITY OF NEW YORK 100 Church St. New York, NY 10007 Law Office of Douglas J. McKay Attorneys for Defendant CON EDISON COMPANY OF New York, Law Department 4 Irving Place New York, NY 10003 Harold Rosengarten, Esq. Obermayer Rebmann et al Attorneys for DEFENDANT VERIZON 34"' 521 Fifth Avenue, Floor New York, NY 10175 .. 7 of 7